Taketa v. State Board of Equalization

SCHOTTKY, J. pro tem.

On May 9, 1949, petitioner and appellant filed a petition for writ of mandate in the superior court of Santa Clara to compel respondent State Board of Equalization to set aside its order of May, 1942, revoking certain off-sale alcoholic beverage licenses of petitioner and to restore said licenses. The trial court found that petitioner’s action was not commenced within the time permitted by law and more particularly, section 343 of the Code of Civil Procedure and judgment was entered denying the writ of mandamus. This is an appeal by petitioner from said judgment.

The matter was submitted to the trial court upon a stipulated set of facts and before discussing the legal issues involved we shall summarize briefly the factual situation.

[457]

The respondent Board of Equalization issued to petitioner, a Japanese, for the fiscal year July 1, 1941 to June 30, 1942, two licenses authorizing the off-sale disposition of beer and wine and the off-sale disposition of distilled spirits in San Jose. On February 19, 1942, following the bombing of Pearl Harbor, an Executive Order of the President of the United States, subsequently ratified on March 21, 1942, by Act of Congress, required and directed the compulsory evacuation of persons of Japanese ancestry from the westerly half of California. The first compulsory evacuation order was issued on March 24, 1942, and pursuant thereto petitioner on or before March 28, 1942, was personally “removed” from the “Pacific Coast area” by order of the appropriate military authorities of the United States and was not permitted to return until January 1 or 2, 1945.

On February 27, 1942, the State Board of Equalization adopted a resolution reciting, among other things, that “the holding of liquor licenses by any person not loyal to the United States constitutes a threat to the national safety” and that all such licenses “held by Japanese enemy aliens, or by Japanese Americans, be revoked, it being determined by the Board that the continuance of such licenses would be contrary to the public welfare.” All District Liquor Control Administrators were instructed to file complaints against every licensee who was a Japanese, and on March 5, 1942, an accusation was filed against petitioner before the board, which was, after due notice, heard before a representative of the board on March 21, 1942. On May 6, 1942, the board voted to adopt the proposed decision revoking petitioner’s licenses, which decision was reduced to writing and filed on May 29,1942.